Comité Nacional por la Libertad de los Cinco Cubanos

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Supreme Court Briefs Claim Cuban Spies Received Unfair Trial in Miami

by John Pacenti
Mar. 20, 2009
Reprinted from National Law Journal

Nobel laureates, scholars and international organizations have flooded the U.S. Supreme Court with legal briefs in support of five convicted Cuban spies, arguing the defendants were sandbagged from the start because the Miami trial took place in a city defined by decades of anti-Castro fervor.

A dozen amicus briefs focus mainly on U.S. District Judge Joan Lenard's denial of a defense motion to move the trial 25 miles north to Fort Lauderdale.

Her refusal "guaranteed that jurors would be drawn from a cross-section of a community inflamed by passion, warped by prejudice, awed by violence and menaced by the virulence of public opinion," according to a petitions filed by the Civil Rights Clinic at Howard University School of Law in Washington, D.C.

The Howard brief has particularly offended the Cuban-American community, said Roland Sanchez-Medina, president of the Cuban American Bar Association. If the Supreme Court decides to hear the case, he said his organization would respond with an amicus brief of its own.

"They obvious did zero actual research to do with anything about the Cuban-American community," he said. "It's unbelievably inflammatory, ignorant and completely baseless."

Ed Guedes, a CABA member and Greenberg Traurig partner in Miami, said the Howard brief is profoundly distressing, deeply demoralizing and surprising since it was written by Anderson Bellegarde Francois, associate professor at the Civil Rights Clinic, and Kurt L. Schmoke, the dean and professor of the law school.

"One would have expected less hyperbole, less stereotyping and considerably greater ethnic sensitivity from these particular authors," Guedes said.

The 11th U.S. Circuit Court of Appeals upheld the trial court's venue decision, but it took an en banc panel to reverse a panel decision ordering a new trial for all defendants.

Tom Goldstein of Akin Gump Strauss Hauer & Feld in Washington, who is handling the Supreme Court appeal for the convicted spies, noted support for the defendants has come "from people from all over the world."

Judge Lenard ruled anti-Castro hostility related "to events other than the espionage activities in which defendants were allegedly involved," and any partiality could be vetted during jury selection.

"This was a serious injustice, and it sent all the wrong signals to the world about our commitment to a fair and impartial trial," Goldstein said.

The Howard brief said it does not claim Miami "is the contemporary reiteration or moral equivalent of Jim Crow society" but repeatedly compares Jim Crow laws mandating segregation to the situation in Miami during the spy trial.

"Agents of the [Fidel] Castro government summoned in the minds of Miami jurors the same emblem of fear and loathing that black defendants conjured in the imagination of white Jim Crow jurors," the brief concludes.

Sanchez-Medina asserted, "To make these allegations of an ethic group, if it was anyone else but Cuban-Americans, they would be vilified by every media outlet and every organization against racial bias."

The convicted secret agents -- Gerardo Hernandez, Fernando Gonzalez, Rene Gonzalez, Antonio Guerrero and Ramon Labanino -- are spread out across the country in federal prisons. They were convicted in 2001 as part of the so-called "Wasp Network," which targeted U.S. military bases from Key West to Tampa, Fla.

The men said they monitored activist exile groups to thwart terrorism in Havana, which experienced a number of bombings in the late 1990s, and focused only on publicly available information on the U.S. military.

Gerardo Hernandez also was convicted of murder conspiracy for feeding information about the anti-Castro group Brothers to the Rescue before two of its planes were shot down in international skies by a Cuban MiG, killing the four men aboard in 1996.

The trial took place during another surge in anti-Castro fervor. The U.S. government took 6-year-old Elian Gonzalez by force from his Miami relatives to return him to his father in his native Cuba.

No Cuban-Americans ended up on the jury, but defense attorneys say the community made its presence known.

"Everyone in this community works with somebody who is Cuban-American or works for somebody who is Cuban-American. Your kids go to school with them," said Hernandez's trial attorney, Paul McKenna of McKenna and Obront in Miami. "You can't return a verdict in favor of Castro's spies and get away with it."

Besides the venue issue, Goldstein's petition asked the court to review Judge Lenard's decision on the impact of prosecution peremptory strikes on the jury's racial makeup and the basis for the murder conspiracy count against Hernandez. Goldstein also said the government should have been required to prove the planes shot down by the Cuban regime's air force did not enter the island's airspace.

The amicus brief submitted on behalf of the 10 Nobel laureates, including German author Günter Grass and East Timor president Jose Ramos-Horta, tells the court that the convictions set a negative example for countries where the rule of law is not firmly established.

"Jurors could not decide this case free from fear and intimidation," the 27-page brief states. "A demand for strict allegiance to an anti-Castro narrative has pervaded the Miami community."

Federal prosecutors exploited this fervor by telling jurors the Cuban government had a stake in the outcome of the case and jurors would be abandoning their community unless they convicted the defendants, according to the Nobel winners' brief.

To drive the point home, the Nobel laureates quote testimony by jury candidate David Cuevas, who said, "I would feel a little bit intimidated and maybe a little fearful for my own safety if I didn't come back with a verdict that was in agreement with what the Cuban community feels."


Nobel laureates, criminal defense attorneys and Hispanic groups are among those filing amicus briefs in the U.S. Supreme Court in support of five Cuban spies convicted in Miami. Briefs were filed by:

-- 10 Nobel Prize winners

-- National Association of Criminal Defense Lawyers

-- Cuban-American scholars

-- Ibero-American Federation of Ombudsmen

-- National Jury Project

-- William C. Velasquez Institute and the Mexican American Political Association

-- National Lawyers Guild and National Conference of Black Lawyers

-- Howard University School of Law's Civil Rights Clinic

-- International Association of Democratic Lawyers

-- Florida Association of Criminal Defense Lawyers, Miami chapter

-- Center for International Policy and Council on Hemispheric Affairs

-- The Mexican Senate


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